What is the procedure for obtaining a domestic violence civil protection order (CPO)?

A victim, or a parent or adult family or household member of a victim, must file a petition for a domestic violence CPO.

The person filing the petition is named as the petitioner, and the alleged abuser is named in the petition as the respondent.

If an emergency (ex parte) CPO is granted on the day the petitioner requests the emergency protection order, the court must then schedule a “full hearing” within seven to ten court days after the court grants the emergency protection order. (If there is no emergency protection order, the court still usually schedules the full hearing within the same seven- to ten-day period after filing the petition, but the court may schedule the full hearing for a later date.)

At the full hearing, both the petitioner (victim) and the respondent (alleged abuser) may present their evidence proving or disproving the alleged abuse, including their own testimony, the testimony of other witnesses, and any relevant documents. The petition and any emergency protection order must be served on the respondent by the sheriff or a sheriff’s deputy.

In what type of court must the petition for a domestic violence civil protection order (CPO) be filed?

If the alleged abuser is an adult (over 18 years of age), the petition must be filed in the Domestic Relations Court (domestic relations division of the court of common pleas). If the alleged abuser is a minor (e.g., the victim’s minor child or sibling), the petition must be filed in the Juvenile Court . If the petition is filed in the wrong court, the court will dismiss the petition for lack of jurisdiction.

What is the legal standard for a court to issue a domestic violence ex parte (emergency) civil protection order (CPO)?

An "ex parte" order is an emergency order issued by the court after hearing from just one side of the case. The court will grant an ex parte (emergency) order if it is persuaded that there is "immediate and present danger" to a family or household member.

Some examples of "immediate and present danger" include situations where:

(1) the abuser has recently threatened or physically abused a family or household member,

(2) the abuser has been previously convicted of, or pleaded guilty, to domestic violence, and

(3) the abuser has engaged in repeated acts of domestic violence against a family or household member.

The victim must tell the judge that she presently fears and believes that harm is just around the corner if the abuser is not stopped. In addition to describing any recent acts or threats of violence and testifying as to her fear of imminent physical violence, the victim can also tell the judge about past acts of domestic violence in order to convince the judge that it is likely that the abuser will commit additional acts of violence in the future.

Other factors that may persuade the judge to issue the immediate ex parte CPO include:

The degree of injury to the victim in the past as well as in the present,

The frequency and severity of the violence,

Whether the violence appears to be escalating,

Any threats of retaliation made by the abuser to the victim or another family or household member,

The use or threatened use of a weapon,

The abuser’s prior criminal history,

The abuser’s alleged use of drugs and/or alcohol,

The abuser’s mental health,

Whether the abuser has threatened suicide,

Specific past acts of physical abuse.

Several courts have developed a lethality check list incorporating these and other factors for the purpose of assessing whether an abuser is likely to seriously injure or kill the victim in the near future.

At the same time, a single threat of imminent serious physical violence, even with prior history of domestic violence, may be enough to convince a particular judge that the victim faces "immediate and present danger" warranting the issuance of an immediate ex parte CPO.

If the court issues an ex parte (emergency) order, it will schedule a "full hearing" within seven (7) or ten (10) days to determine if a more permanent order should be granted.

Can a victim obtain an emergency domestic violence civil protection order on the same day that she requests the order?

Yes.

In fact, the CPO statute requires the court to hold an ex parte (emergency) hearing (with only the victim and her attorney, if any, present) on the same day that the petition is filed to determine if an ex parte CPO should be issued. R.C. 3113.31(D).

The court must treat domestic violence CPO petitions as a high priority and there should always be a judge available that day to review the petition, take the victim’s testimony, and issue the emergency ex parte CPO.

However, it is impractical or impossible to obtain an emergency ex parte CPO during the night or on weekends in most counties. In the larger metropolitan counties which hold night court and/or weekend court, access to the court is possible at night or during any day of the week.

In other counties, it may be necessary for the domestic violence victim to wait until a weekday to go to the court and file her petition for a CPO and an emergency ex parte CPO.

If the ex parte (emergency) CPO is granted, the court must schedule a "full hearing" (where both parties can present their case) for a date within seven (7) or ten (10) days after the issuance of the ex parte (emergency) order to determine whether a more permanent order should be granted.

Can a parent obtain a domestic violence civil protection order (CPO) against his or her minor child?

This is quite rare, but under the CPO statute, RC 3113.31, a family or household member can obtain a CPO against any other family member, including a child. However, depending on the age of the child, the court may insist on appointing a guardian ad litem for the child. Since the respondent is a minor, the petition for a CPO must be filed in the juvenile court, not the domestic relations court.

In addition, if the child is under sixteen (16) years of age and living with someone else, the domestic violence petition may have to be served on the person with whom the child lives or resides. See Rule 4.2(B) of the Ohio Rules of Civil Procedure.

What kinds of remedies can a court order in a domestic violence civil protection order (CPO)?

The CPO will order the abuser to stop abusing, annoying or harassing the victim. In addition, the court may evict the abuser from the parties’ residence by ordering the abuser to vacate the home.

However, some courts are reluctant to include an order evicting the abuser from the parties’ residence in the ex parte emergency CPO because the ex parte CPO is issued before the court can hold a full hearing with testimony from both sides in the case.

Nevertheless, if the victim makes a showing of “immediate and present danger” at the ex parte hearing, the court should include a vacate order in the ex parte CPO.

In addition to the no-abuse and eviction orders, the CPO may award the victim temporary custody of the parties’ minor children, temporary spousal support and/or child support, possession of one of the parties’ motor vehicles, and use and possession of other personal property of the parties.

The judge may also order the abuser to stay away from the victim or to have no contact with the victim, and to not enter the victim’s residence, school, business or place of employment.

Other likely remedies include prohibiting the abuser from interfering with the utilities or mail at the victim’s residence, requiring the abuser to turn over any necessary keys to the victim, and directing law enforcement officers to assist the victim in obtaining custody of her children, transferring personal property, etc.

Finally, the court may order any other relief that it considers “equitable and fair,” thereby giving the judge greater direction to fashion an order that provides maximum protection to the victim. These statutory remedies are set forth in R.C. 3113.31(E).

In what county must the victim file her petition for a domestic violence civil protection order (CPO)?

the county in which the respondent (abuser) resides or has his principal place of business;

the county in which the defendant committed the acts of domestic violence; or

the county in which the petitioner currently or temporarily resides.

In rural areas, the victim will often be temporarily residing in a domestic violence shelter in another county other than the county in which she has resided or expects to reside in the future. Therefore, the victim may file her CPO petition in the county in which the shelter is located even though she may be staying there for only a short time.

When does an Ohio court have jurisdiction to issue a domestic violence civil protection order (CPO)?

An Ohio domestic relations court has jurisdiction to issue a domestic violence CPO against an adult abuser in any case where one or more acts of domestic violence were committed in Ohio or when the abuser is living in Ohio. If the abuser is an adult (at least 18 years of age), the petition must be filed in the domestic relations court (domestic relations division of common pleas court). If the abuser is a minor (under 18 years of age), the petition must be filed in the juvenile court.

Even if the abuser is now living in another state, if he committed acts of domestic violence against a victim in Ohio, an Ohio court may issue a CPO.

If none of the acts of domestic violence (including threats) occurred in Ohio and the abuser lives in another state, the Ohio court may lack personal jurisdiction over the abuser and be unable to issue a CPO against him.

However, if and when the abuser comes to Ohio, the victim may request and obtain a CPO if she can persuade the court that she is in danger because of the abuser’s past acts of domestic violence and his presence in Ohio.

The most difficult cases are cases where the abuser committed all his acts of physical violence in another state, still lives in that state, and the victim has fled to Ohio. Some courts may still grant a CPO to protect the victim from the out-of-state abuser where the abuser’s acts—such as telephone threats or threats made through a third party—caused injury to the victim in Ohio.

The most likely injury from an out-of-state act would be the victim’s emotional distress or her reasonable fear of serious physical harm resulting from the acts of domestic violence (including threats) that were committed in another state.

In addition, telephone threats or threatening letters communicated by the out-of-state abuser to the victim in Ohio may constitute acts of domestic violence in Ohio and thus give the Ohio court jurisdiction in those cases.

However, some courts are reluctant to assert jurisdiction over an out-of-state respondent and may refuse to issue a CPO on the grounds that the court lacks personal jurisdiction over the abuser. You should consult with your legal aid office to find out how your court handles cases involving an out-of-state abuser.

Where the acts of domestic violence occurred in another state, and BOTH the abuser and the victim later moved to Ohio, can a victim request a domestic violence civil protection order (CPO) from an Ohio court?

Yes, if there is immediate and present danger or recent acts of domestic violence or threats. This case should be treated in the same way as a case in which the parties had been living in Ohio at the time of the domestic violence.

The court has personal jurisdiction over the abuser and must look at the facts to determine whether the threats or other acts of domestic violence have placed the victim in danger and thus require the issuance of a CPO.

When the acts of domestic violence occurred in another state, the abuser still lives in another state, and the victim has moved to Ohio, can the victim request a domestic violence civil protection order (CPO) from an Ohio court?

When the abuser lives in another state, the Ohio court may question whether it has “personal jurisdiction” over the abuser. There may also be problems with obtaining service on the abuser in the other state.

However, if service (by sheriff’s service or certified mail) can be obtained on the out-of-state abuser, then Ohio’s long-arm statute may give the Ohio court personal jurisdiction.

Therefore, telephone threats made by the abuser in the other state to the victim in Ohio cause “injury” to the Ohio victim and empower the Ohio court to issue a CPO against the abuser. However, if all the incidents of actual violence and threats of violence occurred while both parties were living in the other state, it is unlikely that the Ohio court could assert personal jurisdiction over the out-of-state abuser.

Can the court evict the abuser from the parties’ joint residence if the residence is titled in, or is leased to, the abuser in his name only?

Yes. If the residence is titled to or least to both the abuser and the victim, then the court may clearly evict the abuser from the residence.

Even if the residence is titled or leased to only the abuser, the court may evict the abuser from the home if he has any duty to support the victim or the victim’s children.

Therefore, if the victim and the abuser are married or if they have children in common, the court may legally evict the abuser from the home even though the home is titled in his name only. See RC 3113.31(E)(1)(c).

Is there any statute of limitations for filing a petition for a domestic violence civil protection order (CPO)?

No.

The statute does not require that the petition for a CPO be filed within any certain period of time after the occurrence of the domestic violence incidents.

In some cases, the courts have issued CPOs months or even years after the acts of domestic violence occurred.

However, many courts will only issue a CPO if they believe that there is an “immediate and present danger” to the victim. If the acts of domestic violence occurred a long time ago, those courts are unlikely to issue a CPO. Practice varies widely from one court to another.

For example, in one county the court will not issue a CPO if there are no acts or threats of violence that have occurred within the past three (3) months. Other courts apply a sixty-day or six-month rule of thumb, while some courts do not apply any time limit rule.

What is the burden of proof for the victim to prove the occurrence of domestic violence or the existence of an “immediate and present danger” for the purpose of obtaining a domestic violence civil protection order (CPO)?

The burden of proof in a civil protection order case is “by a preponderance of the evidence.” In other words, the victim must simply prove that it is more likely than not that the domestic violence occurred and that she is in danger. The Ohio Supreme Court has rejected the use of the more burdensome “clear and convincing evidence” standard that is usually applied in cases where a party seeks an injunction against another party.Felton v. Felton, 79 Ohio St.3d 34 (1997). As a result, it is easier for victims of domestic violence in Ohio to obtain a protection order than it is for victims in other states which require a higher burden of proof.

Can a domestic violence civil protection order (CPO) require the abuser to pay support to the victim even where the abuser and the victim are not married and have no children?

Yes, if the abuser has customarily provided for or contributed to the support of the victim. See R.C. 3113.3(E)(1)(c).Even though there is no duty of child support if the parties have no children in common, and there is no duty of spousal support to an unmarried partner, the CPO statute is unusual in that it empowers the judge to order support to a victim who has been economically dependent on her abuser even in the absence of any traditional legal duty of support.

Can a domestic violence civil protection order (CPO) require the abuser to make rent, mortgage, or utility payments for the victim?

Yes. Since the court has the authority to require the abuser to pay support to the victim, the court may structure that support as either a cash support payment or as a payment that the abuser makes directly to the victim’s landlord, mortgagee, or utility company. However, it may be more difficult to enforce an order for third-party payments than it would be to enforce a cash support order because the local Child Support Enforcement Agency (CSEA) will enforce the cash support order, but not enforce any rent, mortgage or utility payment orders in the CPO.

Can a domestic violence civil protection order (CPO) permanently divide the parties’ property, including real estate, or transfer a real estate title from one party to the other?

No. The court cannot change your assigned title to any real property. Therefore, if title to the house is in the abuser’s name, the court may not change that as part of a property division or settlement even if it gives the victim possession of the home during the time the CPO remains in effect.

As for personal property—any property other than land, buildings or houses—there does not appear to be any statutory authority for permanently dividing such property. One court of appeals has concluded that “it is extremely doubtful that the legislature was contemplating permanent property settlements when it alluded to protection orders or consent agreements in the domestic violence statutes.” Cooley v. Cooley, 90 Ohio App.3d 706 (Montgomery 1993).

Moreover, the fact that a CPO only remains in effect for a temporary period of time (up to a maximum of five years) suggests that the court lacks the power to make any “permanent” property division that would divide up the property for more than that period of time. Therefore, many courts make it clear that any division of personal property ordered in a CPO only provides the parties with exclusive use of the property for the duration of the CPO. However, in some counties the courts divide up the personal property without specifically indicating that such a division is temporary in nature. It is unclear whether those courts really intend to make a permanent property division or are simply leaving the issue open for another court to decide that issue in the future.

Can a victim of domestic violence include a request for a domestic violence civil protection order (CPO) in her divorce complaint without having to file a separate petition for a CPO in another court proceeding?

The CPO statute neither authorizes nor prohibits such a practice. Local practice varies from one court to another. In at least one county, it is fairly common for a victim who is married to her abuser to file a divorce complaint that simply includes the request for a civil protection order in the complaint. That saves the parties’ and the court’s time and expense by making it unnecessary to file to separate court actions. However, in most counties the courts have discouraged or disallowed this practice and the usual practice is to file the divorce complaint and the CPO petition separately. You should consult with your local legal aid office to find out what the local practice is in your area.

Can a domestic violence civil protection order (CPO) require the abuser to turn over any weapons, and can the police seize the abuser’s weapons with or without such a court order?

First, law enforcement officers responding to a domestic violence call must seize any deadly weapons (guns, knives, etc.) that were used, threatened to be used, or brandished during the domestic violence incident. See RC 2935.03(B)(3)(h). However, this statute does not require or even authorize law enforcement officers to seize any other weapons available to the abuser that were not used, threatened to be used, or brandished by the abuser during the incident of domestic violence.

However, once an abuser has been criminally convicted of (or pleaded guilty to) domestic violence, or a domestic violence protection order has been issued against the abuser, the abuser may no longer obtain or possess any guns or ammunition. 18 U.S.C. 922(g)(8) and (9).

In addition, a CPO may order the abuser to turn over all deadly weapons in his possession at the earliest possible opportunity to a law enforcement officer, and the law enforcement agency must then hold the weapons in protective custody until further court order. See 18 U.S.C. 932(g) and the Domestic Violence Full Hearing Civil Protection Order/CPO Full Hearing and Consent Agreement and Domestic Violence Civil Protection Order forms.

How long does a domestic violence civil protection order (CPO) remain in effect?

A domestic violence CPO remains in effect for a definite period of time as set forth in the CPO. That period may be for a maximum duration of five years. R.C. 3113.31(E)(3)(a). In some counties, the judges routinely order that their CPOs remain in effect for five years. In other counties, the judges usually order that CPOs remain in effect for a shorter time period, such as two years.

Can a domestic violence civil protection order (CPO) later be dismissed or modified?

Yes. However, the protection order cannot be terminated, modified, waived, or otherwise nullified without court action. The victim cannot waive the CPO’s stay-away order by inviting the abuser to her home, school, business, place of employment. Therefore, the abuser may be held liable for violating the CPO even if the victim does invite him into her home, school, business, place of employment.

If the respondent (abuser) brings a motion to modify and terminate the CPO, and the court denies the motion, the court may assess court costs against the respondent for the filing of the motion. However, no court costs may be assessed against the petitioner regardless of who brings the motion to modify or terminate the CPO on the outcome of the outcome of the case.

What criteria should a court consider in deciding whether to grant or deny a request to modify or terminate a domestic violence civil protection order (CPO)?

The court must consider the following factors:

Whether the petitioner fears the respondent;

The current nature of the relationship between the petitioner and the respondent;

The circumstances of the petitioner and respondent, including the relative proximity of the petitioner's and respondent's workplaces and residences and whether the petitioner and respondent have minor children together;

Whether the respondent has complied with the terms and conditions of the original protection order or consent agreement

Whether the respondent has a continuing involvement with illegal drugs or alcohol;

Whether the respondent has been convicted of or pleaded guilty to an offense of violence since the issue of the protection order or approval of the consent agreement;

Whether any other protection orders, consent agreements, restraining orders, or no contact orders have been issued against the respondent pursuant to this section, Section 2919.26 of the Revised Code, any other provision of state law, or the law of any other state;

Whether the respondent has participated in any domestic violence treatment, intervention program, or other counseling addressing domestic violence and whether the respondent has completed the treatment, program, or counseling;

The time that has elapsed since the protection order was issued or since the consent agreement was approved;

The age and health of the respondent; and

When the last incident of abuse, threat of harm, or commission of a sexually oriented offense occurred or other relevant information concerning the safety and protection of the petitioner or other protected parties.

Can a domestic violence civil protection order (CPO) be renewed or extended for an additional period of time?

Under the CPO statute, courts may renew CPOs so that they remain in effect beyond the five-year period or other period set forth in the original CPO. R.C. 3113.31(E)(3)(c). However, most Ohio courts do not routinely renew CPOs. The procedure for renewing a CPO is for the victim to file a motion for renewal or extension of the CPO. It is probably necessary to serve the abuser with the motion by either personal service or certified mail service.

In some Ohio courts, a new act or threat of violence is required for a renewal or extension of a CPO. In other jurisdictions, CPOs are renewed based upon the petitioner’s continued fear of the abuser. A combination of past domestic violence and recent threats of future violence should be sufficient to persuade the court to renew the CPO. See, e.g., Woolum v. Woolum, 131 Ohio App.3d 818 (Preble 1999). The better practice is to have the CPO renewed before its expiration date rather than waiting until after the original CPO has expired to request a renewal of the CPO. However, in the Woolum case, the court did grant a renewal of the CPO where the victim requested the renewal almost one month after expiration of the prior order.

If a domestic violence civil protection order (CPO) has child custody and/or visitation orders which conflict with another custody or visitation order in a divorce decree or juvenile court custody order, which order is controlling?

Under the CPO statute, the court considering the petition for a CPO may not include any child custody or visitation orders in the CPO if there is an existing divorce decree or juvenile court custody order. The earlier order is controlling. Moreover, if a CPO does include a child custody or visitation order and another court later issues a custody or visitation order in a divorce case, the latter supersedes the custody and visitation order included in the CPO. In other words, the child custody and visitation provisions of a CPO are only legally valid and enforceable if they do not conflict with a custody or visitation order issued in a divorce or juvenile court proceeding. See R.C. 3113.31(E)(1)(d) and (3)(b).

IMPORTANT! A CPO may, however, implicitly alter a previous custody or visitation order if the children are deemed as persons protected by the CPO and if there are stay-away, no-contact or other safety provisions in the CPO that by implication override the prior custody or visitation order. See, e.g., Rush v. Rush, 1999 WL 104482, No. 74832 (8th Dist. Ct. App., Cuyahoga, November 18, 1999).

Is the victim’s “goading” or “provocation” a defense in domestic violence cases?The victim’s act of “goading” or “provocation” is not a defense to domestic violence in either a criminal or civil domestic violence case. See State v. Sayres, 1997 WL 142361, No. 95 CA 30 (4th Dist. Ct. App., Washington, March 26, 1997).

What form do I need to complete to get a domestic violence civil protection order?

If you or a family member are being physically abused or threatened with harm by a family or household member (person living in your home, even if not related to you by marriage or blood) you can file a petition for a Domestic Violence Civil Protection Order now.

Is there any civil protection order remedy for victims of abusers who are not family or household members of the abuser?

If the abuser is an adult who has stalked his or her victim, the victim may seek a stalking civil protection order (CPO) in the court of common pleas. For more detailed information, see the Stalking Frequently Asked Questions on this web site.

If the abuser is a minor (under 18 years of age) who has engaged in dating violence, bullying, or other violence or menacing behavior, the victim may seek a juvenile civil protection order (CPO) in juvenile court.

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